Cotterman v. U.S.: Live-Blogging the Border Search Doctrine Appeal

By Robyn Hagan Cain on June 18, 2012 9:01 AM

Update 10: (June 19, 3:20 p.m.) Should
the Government be able to look for any evidence of crime in a CBP search?
Corbin says the customs agents should be able to look for any kind of contraband
which is not admissible into the country, which could potentially include
intellectual property contraband.

What is required to lawfully conduct an extended border
search? Corbin says reasonable suspicion is necessary for an extended border
search, but the facts of this case do not match those of an extended border
search. Corbin said that this case is distinguished because Howard Cotterman
had cleared customs, but his laptops had not.

And that’s it for the arguments. Thanks for following.
We’ll update you on the outcome when the Ninth Circuit renders its opinion.

Update 9: (June 19, 3:10 p.m.) Handman closed with the idea that the key difference between cargo and something on your person is that cargo is searched en route to its destination or at its destination. Here, the item was taken to a separate location.

Now we're back to A.U.S.A. Corbin, who says that the search of unallocated space -- which is where the child pornography on Cotterman's computer was located -- shouldn't be distinguished from a general search because illegal material can be found in unallocated space.

Update 8: (June 19, 3:05 p.m.) Handman argues that Cotterman can be distinguished from U.S. v. Arnold, the 2008 Ninth Circuit case holding that the Fourth Amendment does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports.

Handman also argues that the Fourth Amendment has to be elastic to recognize new technology; Justices Samuel Alito and Sonia Sotomayor made similar arguments in their U.S. v. Jones dissents.

Update 7: (June 19, 2:55 p.m.) The judges are now focusing on the Supreme Court's 2004 holding in U.S. v. Flores-Montano, in which the Court held that customs agents may remove the gas tank from a vehicle crossing the international border in an effort to look for contraband. Kirchner says this case is distinguished from Flores-Montano.

Kirchner closed by criticizing the Government for asking the Ninth Circuit to create a legal fiction that there is no difference between a search at the border and a search 170 miles away. Kirchner says there is a difference.

Now Christopher T. Handman from The Constitution Project is up.

Update 6: (June 19, 2:47 p.m.) Kirchner: When they're finally done searching and they haven't found anything, people don't expect their items to be taken away. There must be reasonable suspicion.

In this case, the court asks: What if CBP wasn't finished searching Cotterman's computers? Should it be allowed to keep searching? Shouldn't the Government have a means of stopping the "criminals" who are smart enough to enter through the less-sophisticated border stations?

Update 5: (June 19, 2:40 p.m.) The Ninth Circuit points out that even regular packages, (e.g. U.S. Mail, FedEx packages) can take days to clear customs, raising the question: Was the duration of this search really unreasonable? Kirchner says the reasonable expectation of the person should guide the court.

Update 4: (June 19, 2:34 p.m.) Carmen Corbin, the Assistant U.S. Attorney for Tucson, has finished her argument, reserving the remaining two minutes for rebuttal.

The Ninth Circuit has now turned to William Kirchner with the same question: What is the limiting principle on border searches? In other words, shouldn't the Government be allowed some latitude in searching a laptop at a border station?

Kirchner says the line should be drawn at seizing the computer without reasonable suspicion, and transporting the laptops hundreds of miles. (The distance between the border and the Tucson ICE office was 170 miles.)

Update 3: (June 19, 2:25 p.m.)The Ninth Circuit is asking for Supreme Court precedent involving a U.S. citizen entering the country, and CBP seizing items for extended search without reasonable suspicion. The Government concedes that there is not a case on point.

Update 2: (June 19, 2:22 p.m.) The Ninth Circuit has previously ruled that computers can be searched at the border without reasonable suspicion. The Government maintains that a laptop search at the border is not an unreasonable search. The Government seems to be relying on the fact that Cotterman's computer files were password protected.

The judges have finally raised the issue of the TECS alert, a point that the U.S. Attorney didn't specifically mention until now. The Ninth Circuit seems concerned about the implications of permitting extended border searches of laptops that are password protected. The judges keep asking the Government to define a limiting principle on this theory. The judges are highlighting the slippery slope that the Government's position would create: Permitting the Government to seize all electronic devices at the border.

The Government is arguing that this was a lawful border search that required no reasonable suspicion. U.S. Attorney Corbin argued that the fact that the laptops were moved from the border before clearing customs did not alter the status of that search. She says this case represents the functional equivalent of a border search.

The judges seem concerned with why the government seized Cotterman's cameras and laptop computers. Interestingly, the government's attorney had not raised the point that CBP conducted the extended search of Cotterman's belongings because there was an ICE alert flagging Cotterman's passport based on past convictions for lewd acts with children. ICE told CBP to look for evidence of child pornography.

The issue in the case is whether the search of a laptop computer -- that begins at the border and ends two days later in a Government forensic computer laboratory almost 170 miles away -- can still fall within the border search doctrine.

Want to know what will happen in this hearing as it happens? Come back here; we will be following the court in real time.

The district court concluded that the search of property seized at an international border and moved 170 miles from that border for further search cannot be justified by the border search doctrine. Last year, a Ninth Circuit panel disagreed.

In the facts leading up to the case, Customs and Border Protection (CBP) agents decided to execute a more thorough search of Howard Cotterman's cameras and laptop computers at the Lukeville, Ariz. Port of Entry because an Immigration and Customs Enforcement (ICE) alert flagged Cotterman's passport based on his prior convictions for sexual acts with children.

CBP agents searched Cotterman's cameras and laptops for anything that could contain evidence of child pornography or sex with children. Many of Cotterman's files were password protected, so CBP let Cotterman go, but sent the laptops and cameras to ICE in Tucson for further inspection.

Two days after Cotterman was stopped, the Tucson ICE agent found approximately 75 images of child pornography on his computer. Cotterman challenged the search.

The Ninth Circuit Court of Appeals found that "the border search doctrine is not so rigid as to require the United States to equip every entry point -- no matter how desolate or infrequently traveled -- with inspectors and sophisticated forensic equipment capable of searching whatever property an individual may wish to bring in, or be otherwise precluded from exercising its right to protect our nation absent some heightened suspicion."

The court rejected an "anything goes" border search policy, noting that the Government cannot simply seize property under its border search power and hold it for weeks, months, or years on a whim. The panel's decision, however, failed to define the time and geographic limits of the border search doctrine, instead opting for case-by-case analysis.

Much like the Supreme Court's U.S. v. Jones decision, this case is testing the limits of Fourth Amendment protections as applied to modern technology. Cotterman has the potential to be a major search and seizure decision, so we're trying something new with the way we cover this appeal: Tuesday, we'll be live-blogging the oral arguments from the Ninth Circuit Court of Appeals during en banc rehearing.

Bookmark this post, and check back starting at 2 p.m. PST on Tuesday, June 19, for updates on oral arguments, and our impressions of the judges' reactions. You can also follow our social media coverage of arguments on our FindLaw for Legal Professionals Facebook page and on Twitter with the hashtag #FL9th.

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